GUTIERREZ v. [And a Third Party Action] (2018)

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered February 9, 2017, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, and denied defendants' motion for summary judgment dismissing the section 240(1) claim, unanimously modified, on the law, to deny plaintiff's motion, and otherwise affirmed, without costs.

According to plaintiff's testimony in this action, he was exposed to elevation-related hazards (see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 9, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011] ).  Assuming that the piece of rebar that allegedly struck plaintiff weighed what defendants claimed it weighed, it still presented an elevation-related risk even if it may have traveled only a short distance before striking plaintiff (see Marrero v. 2075 Holding Co., LLC, 106 A.D.3d 408, 409, 964 N.Y.S.2d 144 [1st Dept. 2013];  Cardenas v. One State St., LLC, 68 A.D.3d 436, 437, 890 N.Y.S.2d 41 [1st Dept. 2009] ).  We reject defendants' contention that the rebar being passed to plaintiff did not require a safety device of the type contemplated by Labor Law § 240 because it was being carried by hand (see e.g. Rutkowski v. New York Convention Ctr. Dev. Corp., 146 A.D.3d 686, 46 N.Y.S.3d 54 [1st Dept. 2017] ).  However, plaintiff was not entitled to summary judgment as to liability on the claim under § 240(1) because the records of his medical treatment create an issue of fact as to whether his injury was incurred in the manner described in his testimony.